Blynn v. Silver

Blynn v. Silver Court Supreme Court Date 2001-04-04 Citation 2001 NSSC 55 Docket SAR 01322 Judge/Registrar/Adjudicator MacLellan, Douglas L. (Honourable Justice) Document Type Decision Relations Library Sheet - Blynn v. Silver - 2001 NSSC 55 - 2001-04-04 - Library Sheet Decision Content 2001 S.A.R. No. 01322 IN THE SUPREME COURT OF NOVA SCOTIA Between: Frances Blynn, Administratrix of the Estate of Myrtle O. Berbaum, Deceased Plaintiff -and- Jean E. Silver Defendant D E C I S I O N [Cite as: Blynn v. Silver, 2001 NSSC 55] Heard Before: The Honourable Justice D.L. MacLellan Place Heard: Annapolis Royal, Nova Scotia Date Heard: March 6th and 7th, 2001 Decision Date: April 4, 2001 Counsel: W. Bruce Gillis, Q.C., for Frances Blynn, Administratrix of the Estate of Myrtle O. Berbaum, Deceased H.W. Milner, Esq., for Jean E. Silver MACLELLAN, J. This is an action taken by Frances Blynn, on behalf of the Estate of Myrtle Berbaum against Jean Silver by which the Estate claims monies which were in a joint savings account at the Royal Bank in Bridgewater, Nova Scotia in the name of Jean Silver and Myrtle Berbaum. The issue before the Court is whether the Estate, or Mrs. Silver, is entitled to the funds which amount to over $27,000.00. FACTS The evidence before me consists of testimony from a number of witnesses and also a transcript of evidence given before Justice Charles Haliburton in a trial held in March 1995. By Order made earlier in this proceeding this evidence was declared to be admissible in this trial. The basic facts here are not really in dispute. In 1959, Myrtle Berbaum was living in New York. She apparently became ill and arrangements were made by family members in Nova Scotia for her to come to Nova Scotia to receive medical treatment. She was hospitalized for about five or six months and while in the Province she opened a bank account at the Royal Bank in Bridgewater. She made the initial deposit to the account and her sister Alice Hebb was named with her on the joint account. Alice Hebb is the mother of the defendant Jean Silver and lived in Hebbville, Lunenburg County. While Myrtle Berbaum was in hospital in Dartmouth, Jean Silver, who at that time, was living in Halifax would take her pension cheques to her for her signature and then relay them to her mother Alice Hebb who would deposit them into the joint account. Mrs. Berbaum got out of hospital in March 1960 and stayed with her sister Alice Hebb until December 1960 when she made arrangements to move to Florida. Mrs. Silver and her husband actually drove her to Florida at that time. The evidence suggests that there was really no activity on the account after this time and in January 1974 Alice Hebb died. About two years after her mother’s death, Jean Silver was approached by her aunt, Mrs. Berbaum, and asked if she would go on the account to replace her mother. She agreed and the necessary bank cards were signed setting up the joint account in the both names. Mrs. Silver did no transactions on the account, nor was she aware of any activity on the account by Myrtle Berbaum. In April 1985, Jean Silver became aware that the account was dormant and contacted the bank. She indicates that she was told that it was necessary to have the signature cards re-done and that she should thereafter ensure that there was some activity (deposits or withdrawals) to keep the account active. She said she arranged to have herself and Mrs. Berbaum sign the new signature cards (Exhibit 2, Tab 2) and filed them with the bank. These were standard forms issued by the bank dealing with joint accounts and indicating that either person could withdraw funds from the account and upon the death of either one the “right of survivorship” would take effect. Mrs. Silver testified that after 1985 she never withdrew any money from the account. She said she was given the bank book by Myrtle Berbaum and that she had it until the account was closed out in l994. She said she destroyed the bank book at that time. She said she did occasionally make small deposits into the account to keep it from going dormant as had happened in l985. She said that Mrs. Berbaum made no deposits or withdrawals from the account after she was named on it. Mrs. Silver testified that Mrs. Berbaum would regularly visit Nova Scotia in the summers and would usually stay with her mother Alice Hebb prior to her death. She said she always visited all her relatives and had a good relationship with them. She said she would visit her in Florida and that these visits would normally occur in the Spring. In March 1985 she said that Mr. Berbaum called her and asked that she go to Florida to help her to come back to Nova Scotia for a visit. She said she agreed to do that despite the fact that her husband was ill at the time, and when she got to Florida Mrs. Berbaum who at that point was 90 years old discussed with her the fact that she wanted to make some changes to her Will. She said Mrs. Berbaum had her Will which had been made in 1984 (Exhibit 2, Tab 9) and that she had written in some changes she wanted made. They discussed the changes and Mrs. Silver actually made some notes on the Will herself to indicate changes to be made. The 1984 Will had been prepared by David Centola, a lawyer in Florida, and an appointment was made with him to effect the necessary changes. At that time Mrs. Berbaum had another niece June Packwood who also lived in Florida. Mrs. Packwood had been named an executrix in the 1984 Will and was to be a co-executrix with Jean Silver in the new Will. Because of this, June Packwood was called and went with them to Mr. Centola’s office. The new Will was drafted and executed. Mrs. Silver and Mrs. Packwood were both given copies and the original was kept by Mrs. Berbaum. After dealing with the Will, Mrs. Silver went with Mrs. Berbaum to her bank and Mrs. Silver was asked to list the contents of Mrs. Berbaum’s safety deposit box. That list (Exhibit 2, Tab 5) discloses that she had securities and bonds valued at over $125,000.00. Just before Mrs. Silver and Mrs. Berbaum were to leave Florida for Nova Scotia, Mrs. Berbaum had a stroke and was hospitalized. Mrs. Silver stayed with her for a couple of days but had to return to Nova Scotia to care for her husband. Mrs. Berbaum was in hospital in Florida for about a month and then transferred to a nursing home. Mrs. Silver’s evidence is that she went back to Florida on two occasions to see Mrs. Berbaum. She said that would be in 1986 and l987. Mrs. Berbaum died on October 6th, 1993 in the nursing home. Prior to her death, Mrs. Silver was contacted by June Packwood and asked to transfer the money from the joint account in Nova Scotia to Florida. The suggestion was that the money was needed to cover the nursing home costs. At that point Mrs. Silver was aware that Mrs. Packwood was on another joint account with Mrs. Berbaum in Florida but she didn’t know the amount of money in that account. She said she asked June Packwood if Mrs. Berbaum had made that request herself and was told no, therefore, she didn’t transfer the money to Florida because she said she knew that Mrs. Berbaum had enough assets in her safety deposit box to cover her financial needs. She said she also checked about interest rates in Nova Scotia as compared to Florida and was satisfied that it was best to leave the account in Nova Scotia. Mrs. Silver said that when Myrtle Berbaum died on October 6th, 1993, she called David Centola to discuss her involvement in the administration of the Estate. This was based on her understanding from the March ‘85 Will that she was a co-executrix. She said that she was told by Mr. Centola that Mrs. Berbaum had changed her Will in l986 and that she was no longer a co-executrix, but that June Packwood was the sole executrix and that she (Mrs. Silver) was only appointed as personal representative of the Estate in Nova Scotia as well as being a beneficiary under the Will. She said she was shocked when she heard that Mrs. Berbaum had changed her Will. She asked Mr. Centola about the joint bank account in Nova Scotia and said that he told her that the money would be hers. As a result of that conversation with Mr. Centola, he wrote her on October 8th, 1993, (Exhibit 2, Tab 6) enclosing a copy of the new Will (dated April 23rd, 1986). The significant changes in the new Will as compared to the March ‘85 Will were that Mrs. Silver was dropped as co-executrix and her share of the Estate under the Will was cut in half. Her two sons were also deleted from the new Will, whereas in the 1984 Will they each received $500.00. Mrs. Packwood’s two sons were also deleted. In the earlier Will they had also received $500.00 each. In December 1993, Mrs. Silver received a letter from Mr. Centola (Exhibit 2, Tab 7) in which he suggested that she put the money from the joint account into the Estate. He said that June Packwood had agreed to do likewise with her account if they could agree. He said, “It apparently was not the intention of Mrs. Berbaum that on her death these accounts were to be the property of the joint holder, but rather were to be part of her Estate for payment of bills and distribution among the beneficiaries”. He went on to advise that under Florida law both Mrs. Silver and Mrs. Packwood were entitled to the funds in the accounts. In response to that letter Mrs. Silver wrote to Mr. Centola (Exhibit 2, Tab 9) and advised that she would not agree to put the joint account money into the Estate. She said: “So far as the joint accounts are concerned (I am sorry if I have strayed but wanted you to have a bit of background) I have known for years that there were two joint accounts – one with Mrs. Packwood and the other with me. I have never mentioned or questioned the one with Mrs. Packwood, however the one with me seems to have caused a great deal of concern. The Bank in Bridgewater has been phoned, I have been phoned and have been sent papers by Mrs. Packwood to have the account transferred to Florida. After discussing the matter with my bank manager as well as with my lawyer the decision was reached that the money would stay in Nova Scotia unless it was needed to help defray my Aunt’s living expenses in Florida. I feel when my Aunt had her will changed in 1986, if she had wished to have all of her money in the United States she would have requested the same. Therefore, as you have advised me as well as my lawyer that I am entitled to this money, I feel I will not consider it as part of the estate. May I add if matters had been left as they were in l985 there would have been no question as to the disposal of the money.” Mrs. Silver said that she didn’t hear anything further from Mr. Centola about the joint account. In April 1994, Mrs. Silver received from Mr. Centola a package of materials outlining the accounting on the Estate. Enclosed was a cheque in the amount of $9,038.63 representing her entitlement under her aunt’s Will. After Mrs. Berbaum died, Mrs. Silver went to the Royal Bank in Bridgewater and advised them of her death. She said she was told that thereafter the account would be in her name only based on the right of survivorship clause in the account signature cards. She said she left the money there until May 1994 when after having received the final accounting on the Estate, she took the money out and closed the account. She said she didn’t normally deal with the Royal Bank and put the money in her account at the Bank of Commerce in Bridgewater. Mrs. Silver’s position is that Mrs. Berbaum wanted her to have the money in the joint account and that she told her that on a number of occasions including in March 1985 when she and June Packwood went with her to have the Will changed. Her evidence given at the earlier trial was that after June Packwood mentioned the joint account that Mrs. Berbaum said “that account was going to stay where it was and exactly as it had been for years”. (Exhibit 1, page 137). Floyd Edward Hebb testified before me. He is 74 years old and is a brother of Jean Silver the defendant. He said that he was aware of the joint account between his mother Alice Hebb and Myrtle Berbaum and later with his sister Jean Silver. He said that on a number of occasions, prior to Myrtle’s death, Jean had told him that when Myrtle died that all of them (the nieces and nephews) would be getting money from the joint account. He said that after Myrtle died, Jean came to his house and told him that she didn’t have to give the money to anyone. Floyd Hebb said that the issue of the joint bank account has caused problems within his family and that prior to Myrtle’s death, he and his sister Jean were getting alone fine. He said the family is now split and that the case was not about money but about principle. ISSUES The central issue in this case is whether Myrtle Berbaum intended that on her death the money in the joint bank account would go to Jean Silver instead of going into her Estate to be distributed as set out in her Will. A second issue raised by the defendant is whether the beneficiaries under the Estate, by accepting the money sent to them from Florida, are estopped from advancing this claim. Originally, the defendant had advanced an issue of whether the plaintiff had properly proceeded under the Probate Act. At trial, this issue was conceded and is not being advanced. THE LAW Section 45 of the Nova Scotia Evidence Act provides as follows: “On the trial of any action, matter or proceeding in any court, the parties thereto, and the persons in whose behalf any such action, matter or proceeding is brought or instituted, or opposed, or defended, and the husbands and wives of such parties and persons, shall, except as hereinafter provided, be competent and compellable to give evidence, according to the practice of the court, on behalf of either or any of the parties to the action, matter or proceeding, provided that in any action or proceeding in any court, by or against the heirs, executors, administrators or assigns of a deceased person, an opposite or interested party to the action shall not obtain a verdict, judgment, award or decision therein on his own testimony, or that of his wife, or of both of them, with respect to any dealing, transaction or agreement with the deceased, or with respect to any act, statement, acknowledgment or admission of the deceased, unless such testimony is corroborated by other material evidence.” The parties hereto both agree that the law in regard to a joint bank account is clear. It holds that where, as here, the money was put into the account by one person, upon that person’s death the money is held in trust by the other joint owner for the Estate. That is the presumption of resulting trust. It is agreed that in this case before I decide in favour of the defendant I must be satisfied that the presumption of resulting trust has been rebutted, and that it was the intention of Myrtle Berbaum that upon her death the money would belong to Jean Silver. In coming to the conclusion I must consider Section 45 of the Evidence Act and only accept Mrs. Silver’s evidence if it is corroborated by other material evidence. The leading case on this type of situation with a joint bank account is Niles v. Lake [1947], 2 D.L.R. 248, where the Supreme Court of Canada dealt with a case very similar to the one here. There the surviving owner was attempting to rely on the wording of the bank’s signature cards which had wording similar to the one presented here. (Exhibit 2, Tab 2). The Court held that the signature cards merely set out the responsibilities between the bank and the joint owners and not between the owners themselves. It held that while that document would appear to transfer legal title to the money to the surviving owner, the equitable or beneficial ownership was not assigned to the surviving owner. Taschereau, J. said: (p. 254-55) “The law is well settled, I think, that when a person transfers his own money into his own name jointly with that of another person, except in cases with which we are not concerned, then this is prima facie a resulting trust for the transferor. This presumption, of course, is a presumption of law which is rebuttable by oral or written evidence or other circumstances tending to show there was in fact an intention of giving beneficially to the transferee.” After reviewing a number of cases on point, he continued: (p. 256) “All these authorities, as well as many others which it would be superfluous to cite here, clearly indicate that a mere gratuitous transfer of property, real or personal, although it may convey the legal title, will not benefit the transferee unless there is some other indication to show such an intent, and the property will be deemed in equity to be held on a resulting trust for the transferor.” He also dealt with the suggestion that the bank document itself should rebut the presumption of resulting trust. He said: (p. 258) “In the present case, it is submitted that the document itself contains all that is required to support the proposition that Mrs. Lake, the respondent, took beneficially, and that, therefore, the presumption of a resulting trust has been negatived. With this proposition I am unable to agree, and I have come to the conclusion that although the legal interest has passed to Mrs. Lake, she did not take beneficially, and a resulting trust has been created in favour of the transferor and his estate. Nothing in the document defeats the presumption, and the evidence adduced, far from rebutting it, destroys all possible suggestion that the transferor even intended that Mrs. Lake would receive beneficially. Of course, the document which is under seal may be considered as conclusive, and I do not propose to vary its terms, but the terms themselves do not warrant the conclusion that the Court is now asked to draw. The words “shall be the joint property of the undersigned” or “right of survivorship” and “all monies in the account to be joint property of the undersigned” are indeed apt words to convey a legal title to the fund, but not to convey the whole fund beneficially. Something more than a mere transfer is required to destroy the presumption of a resulting trust and an intimation of such an intent must appear in the document itself, or as a result of evidence which reveals the intention to benefit the transferee.” In the case of McKenna Estate Re: (1994), 134 N.S.R. (2nd) 218, Stewart, J. of this Court dealt with the issue of corroboration as a required by Section 45 of the Nova Scotia Evidence Act. She said: (p. 222) “What serves as corroborative evidence is well set out by Ritchie, C.J., in the case of MacDonald Estate, Re (1924), 56 N.S.R. 451 (C.A.), where at p. 458, he adopted the reasoning of Tachereau, C.J., in MacDonald v. MacDonald (1902), 33 S.C.R. 152: “The statute does not necessarily require another witness who swears to the same things. Circumstantial evidence and fair inferences of fact arising from other facts proved, that render it improbable that the facts sworn to be not true, and reasonably tend to give certainty to the contention which it supports, and are consistent with the truth of the fact disposed to, are, in law, corroborative evidence.” Similarly, in the case of Johnson v. Nova Scotia Trust Company et al. (1973), 6 N.S.R. (2d) 88 (C.A.), Coffin, J.A., dealt with the standard of corroboration that is necessary in this type of case. At p. 107 of that decision, he said as follows: “I do not think however, that the authorities including some of those which I have quoted make it abundantly clear that corroboration does not require new evidence of the whole case but merely evidence that supports the case in a material way and as the trial judge said: ‘To corroborate... means to strengthen, to give additional strength to, to make more certain.’ ” FINDINGS I find in this case the plaintiff can rely on the presumption of resulting trust in regard to the funds in the joint bank account. Myrtle Berbaum put all of the money into the account with the exception of a few dollars put in according to the plaintiff to keep the account active. Based on Niles v. Lake, I find that the bank documents do not establish a claim to the equitable interest in the money by the defendant. I reject the suggestion put forth by the defendant that it was Myrtle Berbaum’s intention that she have these funds. I do so because of the following: The only direct evidence advanced to support the defendant’s position is her own evidence whereby she indicated that Mrs. Berbaum told her on a number of occasions that she would have the money in the account. I don’t believe the defendant when she so testifies. She points to a conversation with Mrs. Berbaum in the lawyer’s office in Florida in March 1985, however, the description of that conversation was that Mrs. Berbaum indicated that the account in Nova Scotia was “going to stay where it was and exactly as it had been for years”. That hardly supports the suggestion that she intended the defendant to have the money. I find it surprising considering the apparent abilities of Myrtle Berbaum to deal with numerous beneficiaries and to change her Will regularly that she would not arrange to simply insert a provision in her Will to convey the money to the defendant. That would have clearly signalled her intention if she had in fact indicated this to the defendant on a regular basis. Her failure to insert such a clause in her Will argues against the defendant’s position. Mrs. Silver herself only advanced the argument that there had been these conversations about the account after she was taken to task by the other beneficiaries. When she was initially approached by Mr. Centola about putting the money into the Estate by way of his letter of December 14th, 1993, (Exhibit 2, Tab 8) her response is interesting in light of her position at trial. She did not suggest that she had conversations with Mrs. Berbaum about her getting the money. She said instead: “So far as the joint accounts are concerned (I am sorry if I have strayed but wanted you to have a bit of background) I have known for years that there were two joint accounts – one with Mrs. Packwood and the other with me. I have never mentioned or questioned the one with Mrs. Packwood, however the one with me seems to have caused a great deal of concern. The Bank in Bridgewater has been phoned, I have been phoned and have been sent papers by Mrs. Packwood to have the account transferred to Florida. After discussing the matter with my bank manager as well as with my lawyer the decision was reached that the money would stay in Nova Scotia unless it was needed to help defray my Aunt’s living expenses in Florida. I feel when my Aunt had her will changed in l986, if she had wished to have all of her money in the United States she would have requested the same. Therefore, as you have advised me as well as my lawyer that I am entitled to this money, I feel I will not consider it as part of the estate. May I add if matters had been left as they were in l985 there would have been no question as to the disposal of the money.” Nowhere does she disclose what she understand to be Mrs. Berbaum’s intention. Also in response to a letter from Bruce Gillis in October of 1994 (Exhibit 2, Tab 15) she simply advises that she had legal advice, that the money was hers, not that Mrs. Berbaum wanted her to have it. I also note that in her letter to David Centola she indicated that she would have put the money into the Estate if the Will had not been changed after 1985. That seems to contradict her position that Mrs. Berbaum wanted her to have the money in any regard. I also doubt Mrs. Silver’s credibility because of what appears to be contradictory evidence given under oath. At the first trial of this matter she was asked if she had received income tax slips from the bank setting out the interest paid on the joint account. The transcript indicates as follows: (Exhibit 1, page 133) “Q. Ah, did you receive any statements from the bank concerning the account? A. The T - TD Form, T4 for Income Tax, yes. No other statements. Q. All right. Did you receive those Income Tax Forms every year? A. Yes. Q. And what did you do with them? A. I filed them with my return. Q. Did you pay the tax on the interest that was earned? A. Yes.” In her evidence before me, I asked Mrs. Silver if she had received the slips for the years between 1985 and 1993. She indicated that she had not. I believe her change in position is as a result of her cross-examination at the first trial when the bank records were shown to her which I am convinced show that the T-5 slips sent out by the bank were in fact sent to Mrs. Berbaum and not to Mrs. Silver because of the fact that withholding taxes were retained by the bank because Mrs. Berbaum was living in the United States. Mrs. Silver was in Court when Lloyd Hebb testified that she had told him on a number of occasions prior to Myrtle’s death that all the family would share in the bank account proceeds. When she testified, she was not asked about that evidence by either counsel. I accept Lloyd Hebb’s evidence on that point. I conclude from the evidence that it was never Mrs. Silver’s intention to claim the money in the bank account until she was advised that Myrtle Berbaum had changed her Will removing her as co-executrix with June Packwood and reducing her share from a double share to a single share and also removing her sons as beneficiaries. I believe Mrs. Silver was told by Mr. Centola that she could claim the account and she did so. I believe she then attempted, when challenged by this action, to somehow get around the presumption of resulting trust by suggesting that Myrtle Berbaum told her she would have the money in the account. I do accept the defendant’s evidence that Mrs. Berbaum considered her special as among the nieces and nephews. I believe Mrs. Berbaum looked to Mrs. Silver for assistance in her personal affairs and confided in her. This is shown by the fact that she discussed her Will with her in March of 1985 and got her to do an inventory of her safety deposit box. I don’t accept the suggestion that therefore I should conclude that Mrs. Berbaum would obviously want the money in the account to belong to Mrs. Silver on her death. Between 1984 and 1986, Mrs. Berbaum made three Wills. She changed a number of beneficiaries and in the 1986 Will reduced Mrs. Silver’s entitlement by one-half. Earlier, she had changed the entitlement of her nephew Gary Swicker. Obviously, she was changing her Will to match her particular intention at the time of writing. I also find that the defendant has not met the test required by Section 45 of the Evidence Act. Counsel suggests that the fact that she had the bank book corroborates her evidence. However, the only evidence that she had the bank book comes from Mrs. Silver herself. She was not able to produce the bank book becuase she said she had destroyed it. I don’t believe she can corroborate her own evidence. Having rejected Mrs. Silver’s evidence about the intention of Mrs. Berbaum in regard to the joint account, I find that the presumption of resulting trust applies here and that the funds in the account belong to the Estate. The defendant has suggested that the beneficiaries here are estopped from claiming against the defendant because they agreed to accept the settlement from the Estate in Florida. I reject that argument. It is clear that the beneficiaries were simply acknowledging receipt of the funds from the Estate and were not giving up their right to claim further if it became evident that the Estate was entitled to additional assets. I also find it difficult to conclude that the beneficiaries individually could bind the Estate. This action is brought by the Estate and not by individual beneficiaries. I would therefore dismiss that argument. The plaintiff has claimed interest. I note however that this matter is before the Court over seven years after Mrs. Berbaum’s death. I understand a number of proceedings proceeded this trial to explain the delay. However, I am not satisfied that interest should apply for the entire period, and would award interest to the plaintiff for a period of four years. The defendant’s counsel argues that the interest to be applied should be interest on savings accounts during that period of time which would be somewhere between .40 to 3 percent. The plaintiff’s counsel suggests the normal interest rate applicable during that period of time should be in the range of 5 percent based on information supplied by the Bank of Canada (Exhibit 4). I note here that Mrs. Silver left the monies in the savings account in the Royal Bank in Bridgewater until May 1994. I have no evidence as to how the money was used after that period of time. In these circumstances I would set the interest rate at 4 percent. I award costs to the plaintiff based on an amount involved of $27,704.00 under Tariff A, Scale 3, subject, however, to being advised of any offers to settle. J.